Terms & Conditions for Publishers

THIS PUBLISHER AGREEMENT consists of the general Terms and Conditions below, any applicable Annexes, and any Amendments to the foregoing (collectively referred to as the “Agreement”). This Agreement is valid for all commercial relationships between video intelligence AG (formerly “Viewster AG), Mühlebachstrasse 70, 8008 Zürich, Switzerland (“vi“) and its publishing clients (“Publisher“) regarding the provision of online ad supply services by vi.

1. License

1.1 The Publisher is an entity seeking to sell its proprietary inventory or an intermediary seeking to sell third party inventory (“Supply Inventory”). Subject to the terms and conditions of this Agreement, with effect from the Effective Date of the applicable Insertion Order, vi grants Publisher a limited, revocable, non-exclusive, non-transferable license during the Term of an Insertion Order to access and use the Program via the Program Interface and use the vi Materials solely for the purpose of selling Supply Inventory.

1.2 For the purposes of this Agreement vi Materials shall mean the Protocol (defined below), APIs or SDKs or Ads in relation to this Agreement. You acknowledge that You obtain no rights in the Program, Ads and/ or in any vi Materials or the Intellectual Property Rights in or relating to them or to receive or access the Program save as expressly provided in this Agreement.

2. Insertion Orders

2.1 An Insertion Order for the provision of online ad supply services shall come into being when vi accepts an insertion order submitted by the Publisher (“Insertion Order“). The specific Insertion Order in question shall contain the respective scope of performance including but not limited to campaign run dates, territorial restrictions and pricing. If the provisions of an Insertion Order diverge from those of these Terms and Conditions, the provisions of the Insertion Order shall take precedence.

2.2 As of the Effective Date of each Insertion Order, and solely in accordance with this Agreement, Publisher may access and use the Program in order to offer and sell Supply Inventory to advertisers who desire to display and serve the Ads on the Supply Inventory, and to set the selling criteria for each campaign.

3. Remuneration and Tracking Results

3.1 (a) Where Ads are successfully displayed by vi buyers, vi shall pay Publisher in accordance with the chosen Pricing Model as set out in Appendix 1. Publisher may move between Pricing Models no more than once in every six (6) month period.

(b) The sole authoritative factor for the counting of the quantity of Ad Impressions, Page Impressions, Ad Clicks or Leads shall be vi’s reporting activities. Pricing shall be as per the Tier relating to the average number of monthly impressions. At the end of any quarter, the number of impressions above the Tier Maximum in any quarter shall be priced in accordance with the pricing for the Tier above. Should the average number of monthly impressions fall below the Tier Minimum in any quarter, pricing shall be as for the Tier below. vi reserves the right to amend the pricing as set out in Appendix 1 upon thirty (30) days’ notice.

3.2 Unless otherwise agreed in an Insertion Order, Publisher and vi shall each raise the valid applicable invoice no later than five (5) working days from the end of the applicable month and shall send that invoice to ap@vi.ai. vi shall pay any undisputed amounts within ninety (90) days from receipt of invoice. No payments will be issued for any amount less than $100 U.S and any unpaid earnings will rollover and be charged on the next invoice (such amounts shall be noted on the face of the invoice for prior periods). Payments can be made in US dollars ($US), £ Sterling or Euros only. vi shall send payment to Publisher via wire transfer / BAC’s transfer. vi’s only liability is to send payment using the bank details provided by Publisher and shall have no liability for lost payments as a result of details being incorrectly entered by Publisher.

3.3 All agreed prices are strictly net and must be paid plus the statutory rate of VAT Publisher is also responsible for any taxes on its income, sales, GST, excise, service tax, or such other transaction taxes, applicable in connection with this Agreement. In case applicable laws require withholding of any amount on account of withholding taxes, vi may withhold such amounts, unless Publisher provides a certificate of exemption from such withholding taxes.

3.4 vi will monitor all inventory via 3rd party verification tools, monitoring fraudulent and bot activity. vi also holds the right to remove urls that are highlighted within these reports and pause or cancel a booking based on this reporting. vi reserves the right to exclude any impressions deemed as fraudulent or non-human from overall payment to the Publisher. vi will not tolerate any suppliers who run any impressions outside of the VI terms & conditions against Illicit, illegal, adult, defamatory or unapproved content vi will require full compensation for every impression served on the tag for that months booking.

4. Obligations of the Publisher

4.1 Use of the Program is subject to all applicable vi ad specification requirements and policies, including without limitation, the vi Privacy Policy, available on the vi.ai website, (collectively, the “Policies”), which may be updated from time to time by vi.

4.2 Publisher will implement the Program in a manner that complies with the technical and implementation requirements provided by vi from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in the vi documentation (collectively, the “Protocol”). Publisher will protect any Program accounts, usernames or passwords and take full responsibility for Publishers own, and third party, use of the same.

4.3 Where Publisher is seeking to sell third party inventory, the intermediary is obliged to specify (and prove) who it is representing.

4.4 Publisher is solely responsible for all aspects of Publishers Supply Inventory (including content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information). vi shall be entitled to either wholly or partly reject and remove (either temporarily or permanently) Supply Inventory that, at vi’s sole discretion, contains or links to illegal content or any other content that infringes vi’s Policies or Code of Conduct for Publisher.

4.5 Publisher will not, and will not allow any third party to: (a) use, directly or indirectly access, launch or activate the Program through or from, or otherwise incorporate the Program in, any software application, website or other means other than Publishers designated sites; (b) transfer, sell, lease, syndicate, sublicense or lend the Program; (c) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program; (f) remove, deface, obscure, or alter vi’s proprietary rights notices affixed to or provided as a part of the Program, the Vi Protocol, or any other vi Materials (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Program, vi Materials or any other proprietary information related thereto; (h) use any feature or functionality of the Program, or include anything in Publishers Supply Inventory, that could be used to personally identify or personally track individual end users or any other persons; or (i) engage in any action or practice that reflects poorly on vi or otherwise disparages or devalues vi’s reputation or goodwill. vi may terminate the Program, immediately upon written notice if Publisher breach this Section.

4.6 vi may investigate any activity that may violate this Agreement. If Publisher violates this Agreement or any Policies, vi may in its sole discretion, with a prior notice of forty-eight (48) hours, terminate this Agreement, or suspend or terminate the participation of Publishers Program Site in all or part of the Program. For any other violations, vi will give Publisher forty eight (48) hour notice period to cure such violations, and if such violation is not cured within the 48 hours of vi sending such notice to You, vi may terminate this Agreement, or suspend or terminate the participation of Publishers Program Site in all or part of the Program. vi may refuse to process a request for display of Ads (“Ad Requests”) that are not sent in compliance with the requirements of this Agreement. Further vi shall not be liable for any loss or damage Publisher may suffer or incur as a result of the suspension of Publisher’s access to the Services (or any part thereof) and/or any vi Materials (or any part thereof).

5. Warranties and Force Majeure

5.1 The Publisher warrants (i) that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, and that the Supply Inventory is free of any third-party rights (in particular trademark rights, patent rights or copyright) which would prevent its of vi’s use of the Supply Inventory as defined by the Insertion Order and this Agreement, (ii) all the information provided to vi to enrol in the Program is correct and current at all times; (iii) Publisher has all necessary right, power and authority to enter into and perform its obligations under this Agreement and (v)that the Supply Inventory does not infringe any provision of vi’s Code of Conduct for Publishers (s. Annex).

5.2 vi does not assume any warranty for the secure, interruption-free or error-free operation of its Program.

5.3 The Publisher shall be obliged to check the online advertising containing the Supply Inventory without undue delay after its publication and to notify vi in writing of any discernible errors without undue delay but no later than one week after the publication. If the Publisher fails to provide notification in this way, the online advertising shall be regarded as approved in accordance with the respective Insertion Order and this Agreement, unless the error was not discernible at the time of the check. If an error in the online advertising becomes apparent at a later date, the Publisher must give notification of it without undue delay upon its discovery, otherwise the online advertising shall be deemed approved even in consideration of this error.

5.4 In cases of force majeure, vi shall be released from its obligation to render its services. All unforeseen events and events having impact on the performance of the Insertion Order or this Agreement for which neither of the parties is responsible shall be deemed force majeure. Such events shall include without limitation lawful means of industrial action, also in third-party companies, official measures taken by authorities, the failure of communication networks and gateways of other operators, disruptions in the area of network sellers, other technical mal-functions, including when such circumstances occur in the area of subcontractors, sub-suppliers or their subcontractors, or operators of subnodal data processors. No entitlements shall result for Publishers from any failures for which vi is not responsible.

6. Limitation of Liability

6.1 With the exception of Publisher’s infringement of its obligations under Clause 9, under no circumstances shall either party be liable to the other for indirect, incidental, consequential or exemplary damages (even if the other party has been advised of the possibility of such damages) arising from or out of this Agreement.

6.2 With the exception of instances of gross negligent of wilful intent, the liability of vi shall be limited to the amounts payable to Publisher pursuant to this Agreement in the twelve month period leading up to the claim.

7. Third Party Claims and Indemnification

7.1 The Publisher shall indemnify and release vi and/or affiliates of vi from any and all claims asserted by third parties against vi because of an infringement (i) of intellectual property rights , (ii) legal provisions (e.g. criminal law, youth protection law, unfair competition law) as a result of the use of the Supply Inventory in conformity with the Insertion Order and/or as a result of the promoted subjects (e.g. an Publisher’s offer or inventory), (iii) of vi’s Code of Conduct for Publishers, or (iv) Publishers breach of its obligations under Clause 9. In this regard, the Publisher shall also assume the necessary costs incurred by vi in defending its rights, including any and all court costs and lawyers’ fees. This does not apply if and to the extent that the Publisher is not responsible for the violation of rights. The limitations on liability in Section 6 shall not apply for the indemnification obligation. Any compensation claims asserted on grounds of loss or damage going beyond this shall remain unaffected by the indemnification obligation.

7.2 vi and/or the affiliate of vi undertake not to acknowledge third-party claims without the Publisher’s consent and not to reach any settlement on the matter in question with the third party. Publisher, however, may refuse his consent only for good cause.

8. Communication and Confidentiality

8.1 Confidential Information. As used herein, “Confidential Information” means any non-public information, regardless of whether it is in tangible form, disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement and which is identified or marked as “confidential” or “proprietary” or which, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. vi Confidential Information includes, without limitation, the terms of this Agreement and any non-public information relating to this Agreement. Except as otherwise expressly permitted under this Agreement, the Receiving Party will not disclose any Confidential Information to third parties.

8.2 Information shall not be deemed Confidential Information if the Receiving Party can show by competent evidence that such information: (a) was known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) became known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) became publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.

8.3 Each Party shall use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information during the Term and for a period of three (3) years following the termination of this Agreement. Confidential Information may be disclosed only to: (a) employees and agents of the Parties that have a need to know such information in the course of their duties (and with respect to agents, who are under a contractual duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 8); (b) legal or financial advisors or potential acquirers of each of the Parties on a need to know basis (provided that such advisors and/or acquirers are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 8); (c) if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable prior written notice to the Disclosing Party (if legally permissible) and uses commercially reasonable efforts to cooperate with the Disclosing Party’s attempt to obtain a protective order). Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information that is in the possession of the Receiving Party.

9. Data Protection

9.1 vi and Publisher will post on their respective websites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Publisher to comply with its policy or applicable data protection legislation is grounds for immediate cancellation of the IO by vi. 9.2 With respect to data collected via the Program, vi may combine information that does not directly identify an individual with data collected from other sources and disclose the combined information to participating publishers, advertisers and ad networks so that they can determine whether to bid on ad inventory and in order to improve the relevance of the advertising presented to users. We also use the information we collect to host, operate, maintain, secure, and further develop and improve the Program, such as to keep track of advertising delivery and to measure the effectiveness of advertising delivered through the Program, and investigate compliance with vi’s policies and terms and conditions.

10. Term and Termination

10.1 This Agreement shall come into effect on the date of signature of the first Insertion Order between the parties, and shall remain in effect for as long as there is an Insertion Order active between the parties. Either party may terminate an Insertion Order on thirty (30) days written notice.

10.2 vi may terminate any Insertion Order, and withhold payment, if vi in its sole discretion determines that Publisher is engaging in behaviour that may be construed as illegal, unethical, defamatory or otherwise may reflect negatively upon vi’s reputation, or that of its advertisers or business partners, including where vi reasonably suspects that any of the following have occurred regarding the Supply Inventory: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws.

10.3 The term “Fraudulent Activity” for the purposes of this Agreement means, without limitation, any activities that authorize or encourage any third party to: (a) generate impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (b) mislead users to click on Ad(s); (c) in any way minimize or obstruct the display of any Ad(s); or edit, modify, filter or change the order of the information contained in any Ads; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by vi; or reverse engineer, decompile or disassemble any software components of the advertising services provided by vi. At its sole discretion and without limitation to the foregoing, vi may credit back to advertisers and/or offset against future payments to Publisher any payments which it subsequently determines accrued because of such Fraudulent Activity or illegal activity perpetrated by Publisher.

10.4 On termination of the Agreement for any reason: (i) all licenses granted by vi under this Agreement shall immediately terminate; (ii) Publisher shall uninstall or otherwise remove any means of access to the Program provided under the Agreement including client software and any SDK or API code supplied by vi under this Agreement; and (iii) Publisher shall immediately return all vi Confidential Information and vi Material.

10.5 The termination of the Agreement shall be without prejudice to any accrued rights and obligations of the parties arising under the Agreement prior to such termination. Any provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination, will continue to be in effect post the termination of this Agreement.

11. Applicable Law, Jurisdiction

11.1 The Insertion Orders and this Agreement shall be, in its application and interpretation, governed exclusively by the laws of Switzerland. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1998 shall not apply.

11.2 Zürich (Switzerland) is agreed upon as place of jurisdiction for any and all claims arising from or due to this Agreement.

12. Miscellaneous

12.1 vi shall be entitled to either wholly or partly transfer the rights and duties under the Agreement to vi Affiliates.

12.2 Any invalidity of individual provisions of this Agreement shall not affect the validity of the remaining provisions.

12.3 This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and arrangements whether written, oral or implied between the parties related to the subject matter of this Agreement.